Excerpt: - - --sub-rule (2) is an exception to sub-rule (1) of rule 17. sub-rule (1) clearly prohibits any person who is not a licensed grain dealer from retaining in his possession at any time more than 50 maunds of food grains. it may be difficult for the proseeution to establish precisely as to when the accused came into possession of the food grains and it might be easy for the accused to prove that he had received the food grains within seven days but that would not alter the general principle that it is for the prosecution to prove that the accused has contravened the provisions of clause 17 of the order. ' the prosecution has in these cases failed to adduce evidence that the applicants had been in possession of the food grains in each case for more than one week......supplies temporary powers act, 1946 for contravening the pro-visions of clause 17 of the rajasthan food grains control order, 1949. same point of law arises in these three petitions and sharma j. has referred the case to the division bench as in his opinion clause 17 of the rajasthan pood grains control order is capable of different interpretations.2. all these three petitions are being disposed of by this judgment;3. the petitioners have been challaned for possessing more than 50 mds. of food grains and thus having contravened clause 17 (1) of the food grains control order, 1949 which is punishable under section 7 of the essential supplies temporary powers act, 1946. in order to appreciate properly the point of law involved in these revision petitions, we set forth below clauses 17(1).....

Judgment:

Bhandari, J.

1. The applicants in these three revision petitions have been convicted by the- learned Sub-Divisional Magistrate Bundi to take their trial under Section 7 of the Essential Supplies Temporary Powers Act, 1946 for contravening the pro-Visions of Clause 17 of the Rajasthan Food Grains Control Order, 1949. Same point of law arises in these three petitions and Sharma J. has referred the case to the Division Bench as in his opinion Clause 17 of the Rajasthan Pood Grains Control Order is capable of different interpretations.

2. All these three petitions are being disposed of by this judgment;

3. The petitioners have been challaned for possessing more than 50 mds. of food grains and thus having contravened Clause 17 (1) of the Food Grains Control Order, 1949 which is punishable under Section 7 of the Essential Supplies Temporary Powers Act, 1946. In order to appreciate properly the point of law involved in these revision petitions, we set forth below Clauses 17(1) and (2) of the Order:--

4. Clause 17 (1):

'No person, who is not a licensed grain dealer, shall retain in his possession at any one time more than 50 mds. of food grains which quantity will cover the requirements of himself, his family and all other purposes including seeds

Clause 17 (2):

'Subject to the provisions of Sub-clause (4) all food grains in the possession of any person, not being a licensed grain dealer in excess of the scale prescribed under Sub-clause (1) above, shall within a month from the date of the publication of this Order in the Gazette, or if possession is acquired subsequent thereto, within a week from the date of such acquisition, be disposed of by such person by sale to a lisensed grain dealer at the market rate or in such other manner as may from time to time be prescribed by the Commissioner or the Director.'

The contention raised on behalf of the petitioners is that it has not been proved by the prosecution that they had been in possession Of the food grain's seized from them for more than a week from the date of the acquisition by them of the food grains seized and as such it cannot be said that they have contravened any of the provisions of Clause 17 of the Order.

On behalf of the Government, it has been urged that under Clause 17 (1) it is sufficient for the prosecution to prove that the petitioners were in possession of more than 50 maunds of food grains and on the proof thereof, the petitioners have contravened the provisions of Clause 17 (1) of the Order.

5. We have to examine whether Clause 17 (1) is a provision which stands independently by itself or is one ancillary to Clause 17 (2). Under Clause 17 fl) mere possession of more than 50 maunds of food grains is sufficient to make it a contravention of the Pood Grains Control Order. While under Clause 17, (2) a person is entitled to keep more than 50 maunds of food grains for a period up to one week, from the date of his acquisition of the food grains. On the face of it, therefore, these two sub-clauses appear to be contradictory to each other. If they are to be reconciled, harmonious construction is given to both these sub-clauses. This matter was considered by my Lord the Chief Justice in the case of Bhera v. The State, 1952 Raj LW 280-(A). In reply to the arguments raised on behalf of the applicant in that case, that it was for the prosecution to prove that the applicant had been in possession for more than seven days before he had been found in possession of the food grains, Hon'ble Chief Justice observed as follows:--

Sub-rule (2) is an exception to Sub-rule (1) of rule 17. Sub-rule (1) clearly prohibits any person who is not a licensed grain dealer from retaining in his possession at any time more than 50 maunds of food grains. Sub-rule (2) establishes an exception for the benefit obviously of those who grow food grains and gives them 7 days within which they should dispose of their food grains. Sub-rule (3) provides that they should within a further three days send information to the Tehsildar of the sale made by them. If therefore, any person who is charged for contravention of rule 17(1) wants to take advantage of the exception provided under Rule 17 (2), his case is covered by Rule 17(2). If that were not so, it would generally be impossible to prosecute any one for the breach of rule 17(1).'

6. We entertain considerable doubt as to the opinion expressed by the Hon'ble the Chief Justice in this interpretation of Clause 17. If both the sub-clauses are read together in the light of the above observations, Sub-clause (2) being treated as an exception to Sub-clause (1), they will read, so far as relevant to the matter under consideration as follows:--

'No person who is not a licensed grain dealer shall retain in his possession at any one time more than 50 maunds of food grains .....provided that all food grains in the possession of any person not being a licensed grain dealer in excess of this scale shall, within a week from the date of such acquisition, be disposed of by such person by a sale to a licensed grain dealer.....'

7. Even read thus, the proviso is contrary to the main section. If we treat Sub-clause 17 (2) to be merely an exception to Sub-clause 17 (1) the two cannot stand together. We have already re-marked that under Clause 17 (I) mere possession of more than 50 maunds of food grains will amount to a contravention of the Control Order but under Sub-clause 17(2), a perid of one week is available to the person within which he may carry out the directions contained in that sub-section. By merely treating Sub-clause 17 (2), as an exception to Sub-clause 17 (1) the effect is not gone. The law has given a person the right to hold the food grains for one week without disposing them off under Sub-clause 17 (2), while he is guilty of the contravention even if he possesses the food grains even for a single day. It cannot be assumed that the Parliament has given with one hand what it has taken away with another '(Maxwell on Interpretation of the Statutes, 10th Edition page 160).

8. It may be when a person acquires food grains in excess of 50 maunds he may have the Intention to keep the same for more than a Week but on the 7th day of his acquisition, he may decide to sell them off in accordance with the provisions contained in Sub-clause 17 (2); can it be said under those circumstances that he had committed the contravention of the Clause 17? Which Sub-clause would come into play? In our opinion, he has not contravened any of the provisions of Caluse 17. We have to give harmonious Construction to both the sub-clauses As observed in. Madhukar Trimbaklal v. Shri Sati Godawari Upasani Maharaj of Sakori, AIR 1940 Nag 39 (FB) (B) 'a construction that involves reading two successive sentences as flatly contradicting each other must be avoided if possible.' Read together both the sub-clauses are capable of being reconciled. Sub-clause 17(1) merely prescribes the scale, referred to In Sub-clause 17(2). Independently it does not contain any condition, the breach of which may amount to a contravention of that sub-clause. It is Sub-clause 17(2) which lays down the conditions the breach of which may be an offence. It is also significant that the legislature has used the words 'shall retain' in his possession in Sub-clause 17 (1). The word 'retain' signifies that a person has a right to hold possession for some time, however small that might be. That also supports our interpretation of both the sub-clauses. In our opinion, Sub-clause 17 (1) cannot be treated as an exception to Sub-clause 17 (2). Sub-clause 17 (1) by itself does not create any offence it merely defines the scale of the quantity of food grains for the purposes of Sub-clause (2).

9. In this view of the matter, Section 105 Evidence Act has no application and the burden of proof is on the prosecution to prove that the food grains, in excess of that prescribed under Sub-clause 17 (1) had been in his possession for more than a week. The following observations of Bhagwati J in Behram Khurshid Pesikaka v. State of Bombay, (S) AIR 1955 SC 123 (C), Original Bench, may be quoted with advantage:--

'When these several interpretations were possible in regard to the effect of the Declaration on the provisions of Section 13 (b) where would be the justification for interpreting the effect of the Declaration to be that of grafting an exception or proviso on Section 13 (b) so as to attract the operation of the provisions of Section 105 of the Evidence Act? It is clear that where several interpretations are possible, the Court should adopt an interpretation favourable to the accused, rather than one which casts an extra or special burden upon him, which if at all should be done by clear and unequivocal provision in that behalf rather than in this indirect manner.'

10. The burden of proof is always on the prosecution even in cases where it is within the special knowledge of the accused as to for what period he had been holding the possession of the food grains. It may be difficult for the proseeution to establish precisely as to when the accused came into possession of the food grains and it might be easy for the accused to prove that he had received the food grains within seven days but that would not alter the general principle that it is for the prosecution to prove that the accused has contravened the provisions of Clause 17 of the Order. We may again quote the following observations of their Lordships of the Supreme Court in Behram Khurshid Pesikaka's case (C), Original Bench:

'The mere circumstance that the fact in regard to his consumption or use of liquid medicinal or toilet preparation containing alcohol was specially within the knowledge of the accused also could not shift the burden of proving the ingredients of the offence from the prosecution to the accused, because it is a cardinal principle of criminal jurisprudence as administered in this country that it is for the prosecution and prosecution alone to prove all the ingredients of the offences with which the accused has been charged. The accused is not bound to open his lips or to enter upon his defence unless and until the prosecution has discharged the burden which lies upon it and satisfactorily proved the guilt of the accused. Section 106 of the Evidence Act cannot be construed to mean that the accused has by reason of the circumstance that the facts are especially within his own knowledge to prove that he has not committed the offence It is for the prosecution to prove that he has committed the offence and that burden is not in any manner whatsoever displaced by Section 106 of the Evidence Act.'

The prosecution has in these cases failed to adduce evidence that the applicants had been in possession of the food grains in each case for more than one week. Under these circumstances no offence is made out against the applicant even if whole of the prosecution evidence is to be believed.

11. We do not think that retrial of the case, by giving the prosecution further opportunity to prove that the applicants were in possession for more than a week, would serve any useful purpose as the circumstances in the country in the matter of the supply of food grains to the public have considerably changed.

12. We therefore, quash the order of commitment dated the 7th of February 1952 passed by the sub-Divisional Magistrate, Bundi and discharge the applicants.